Not Covered

Abortion is almost as old as childbirth. There has always been a need for some women to end their pregnancies. In modern times, the law’s attitude toward that need has varied. In the United States, at the time the Constitution was adopted, abortions before “quickening” were both legal and commonplace, often performed by midwives. In the nineteenth century, under the influence of the ascendant medical profession, which opposed abortion (and wanted to control health care), states began to outlaw the procedure, and by the turn of the twentieth century it was all but uniformly illegal. The rise of the feminist movement led to widespread efforts to decriminalize abortion, and in 1973 the Supreme Court found, in Roe v. Wade, that the Constitution prohibited the states from outlawing it.

Throughout this long legal history, the one constant has been that women have continued to have abortions. The rate has declined slightly in recent years, but, according to the Guttmacher Institute, thirty-five per cent of all women of reproductive age in America today will have had an abortion by the time they are forty-five. It might be assumed that such a common procedure would be included in a nation’s plan to protect the health of its citizens. In fact, the story of abortion during the past decade has been its separation from other medical services available to women. Abortion, as the academics like to say, is being marginalized.

The latest evidence comes from the House of Representatives, which two weekends ago narrowly passed its health-care bill, by a vote of 220 to 215. One reason that the Democrats won back control of Congress is that the Party adopted a “big tent” philosophy on abortion. The implications of that approach became clear when, during the health-care vote, the House considered a last-minute amendment by Bart Stupak, a Michigan Democrat, which proposed scrubbing the bill of government subsidies for abortion procedures. It passed 240 to 194, with sixty-four Democrats voting in favor.

A clear understanding of the structure of the health-care proposals currently under consideration shows why the Stupak amendment is such a threat to abortion rights. At the heart of the proposals is the idea of an exchange, where consumers will be able to select among competing insurance plans. Theoretically, the exchange will increase consumer choice, promote competition, and (somewhat more theoretically) lower costs for everyone. If there is a public option, it will be offered through the exchange. At first, many of the people using the exchange will be those who are unable to pay for health insurance on their own. For them, the government will offer a sliding scale of subsidies. It is largely these subsidies which will increase the availability of insurance; estimates of how many people will gain coverage vary, but it may be close to forty million.

Restrictions on the use of federal funds for abortion go back to the Hyde amendment, which became law more than thirty years ago; for example, there has long been a ban on abortions under Medicaid or in military hospitals. But the implications of the Stupak amendment are broader, because of the structure of the exchange. To start with, Stupak states that anyone who buys insurance with a government subsidy cannot choose a plan that covers abortion, even if that person receives only a small subsidy, and even if only a tiny portion of the full premium goes for abortion care. And the influence of the amendment reaches beyond the recipients of federal subsidies. Stupak would prohibit the public option from offering any plans that cover abortion. Further, it is expected that each year more Americans will use the exchange, including people who don’t need subsidies, but under the Stupak amendment insurance companies would have no incentive to offer those people coverage for abortion services, since doing so might cost them the business of subsidized customers. Today, most policies cover abortion; in a post-Stupak world, they probably won’t. With a health-care plan that is supposed to increase access and lower costs, the opposite would be true with respect to abortion. And that, of course, is what legislators like Stupak want—to make abortions harder, and more expensive, to obtain. Stupak and his allies were willing to kill the whole bill to get their way; the liberals in the House were not.

It may be that the endurance of Roe and Democratic control of the federal government have led to a certain complacency among abortion-rights supporters. Yet it’s not only with regard to insurance that abortion services are being treated like a second-class form of medicine. There is, for instance, the proliferation of “conscience clauses,” which allow medical professionals to refuse to conduct procedures that they disapprove of. Shortly after Roe, Congress passed the first major conscience clause, which stated that medical professionals and hospitals that receive certain federal funds did not have to provide abortions or sterilizations if they objected on “the basis of religious beliefs or moral convictions.” The Bush Administration sought to dramatically expand the clauses to cover not only doctors and nurses but anyone who works in a hospital, including pharmacists, and to increase the range of practices that might be rejected—a step that could potentially include such services as the dispensing of birth control. President Obama has said that he will revise or overturn the policy.

The President is pro-choice, and he has signalled some misgivings about the Stupak amendment. But, like many modern pro-choice Democrats, he has worked so hard to be respectful of his opponents on this issue that he sometimes seems to cede them the moral high ground. In his book “The Audacity of Hope,” he describes the “undeniably difficult issue of abortion” and ponders “the middle-aged feminist who still mourns her abortion.” Elsewhere, he announces, “Abortion vexes.” The opponents of abortion aren’t vexed—they are mobilized, focussed, and driven to succeed. The Catholic bishops took the lead in pushing for the Stupak amendment, and they squeezed legislators in a way that would do any K Street lobbyist proud. (One never sees that kind of effort on behalf of other aspects of Catholic teaching, like opposition to the death penalty.) Meanwhile, the pro-choice forces temporized. But, as Supreme Court Justice Ruth Bader Ginsburg observed not long ago, abortion rights “center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.” Every diminishment of that right diminishes women. With stakes of such magnitude, it is wise to weigh carefully the difference between compromise and surrender. ♦

Jeffrey Toobin has been a staff writer at The New Yorker since 1993 and the senior legal analyst for CNN since 2002.